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Employment Law: Tribunal judge rules, belief in ‘climate change’ akin to religion

A man who claimed he was unfairly dismissed from his job because he believes in climate change has successfully argued that his environmental views be recognised under religious law.

The judge agreed that Tim Nicholson’s views on the environment are so strong to be due the same protections as religious beliefs, under Employment Equality (Religion and Beliefs) Regulations 2003.

Mr. Nicholson worked for Newcastle-based Grainger Plc, one of the UK's largest property companies as its head of sustainability. When he was made redundant in July 2008, Mr. Nicholson complained to an employment tribunal, alleging that while Grainger had good written policies on the environment, it had refused to abide by them.

Mr. Nicholson sited an incident where Grainger’s Chief Executive, Rupert Dickinson left his BlackBerry behind in London while on a business trip to Ireland, and ordered his staff to get on a plane and deliver the device to him in person. Mr. Nicholson claimed that when he tried to encourage the company to become more responsible, he was obstructed by his bosses.

He said his beliefs had contributed to his dismissal and in March a judge ruled he could use employment equality laws to claim it was unfair. But the firm appealed against this as it believed his views were political.

After the hearing on 2nd November 2009, Mr Nicholson said he was delighted by the judgement for himself and other people who may feel they are discriminated against because of their views on climate change.

Susan Mayall, employment lawyer at Pearson Hinchliffe Commercial Law, explained however that the judgment could open the door for people to take their employers to tribunals over their stance on a range of issues, from animal rights to feminism.

Ms Mayall commented: “The EAT noted that a belief based on political philosophy could qualify as a genuinely held philosophical belief. Parliament did not originally intend to legislate for political belief and the judge seems in little doubt that the belief is political in this case, but now it seems that, not only will this lead to more claims, it will also be inconsistent in its effects, protecting some political beliefs but not others.”

Mr Justice Michael Burton decided that: “A belief in man-made climate change, and the alleged resulting moral imperatives, is capable if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations.”

Under those regulations it is unlawful to discriminate against a person on the grounds of their religious or philosophical beliefs.

The following extract from the judgment makes interesting reading:

“RELIGION OR BELIEF DISCRIMINATION

A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations. The belief must be of a similar cogency or status to a religious belief, the ECHR jurisprudence is directly material and the limitations on the concept and extent of a philosophical belief can be derived from that, without the need to place any additional limitation on the nature or source of the belief.

The following criteria could legitimately be drawn from the rulings of the ECHR and other jurisprudence:

(i) The belief must be genuinely held.
(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and paragraph 23 of Williamson).

Mr Bowers submits that, in order satisfactorily to place a limitation on the philosophical belief that is to be protected, and in order to be similar to a religious belief, it must form part of a system of beliefs, and not be one-off. He refers to dicta of the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) [1983] HCA 40, at paragraph 13, referring to philosophies which

“… seek to explain, in terms of a broader reality, the existence of the universe, the meaning of human life and human destiny.” He refers also to Vickers’ exposition of how another Member State, the Netherlands, approaches the question of belief in its equivalent Regulations: “In the Netherlands the term levensovertuiging (philosophy of life) is used in order to place limitations on the type of belief that can be covered. The term ‘philosophy of life’ requires a coherent set of issues about fundamental aspects of human existence, and includes broad philosophies such as humanism, but does not extend to more general views about society.”

His submission is that what is required is a philosophical belief based on a philosophy of life, not a scientific or political belief or opinion, or a lifestyle choice. Both sides refer to dictionary definitions of philosophy, as did the Regional Employment Judge, but I do not find them particularly helpful to resolve the question, since, as one would expect, each dictionary referred to has a number of definitions of philosophy. It is, as I have said, common ground that there must be some limitation, and hence Malcolm Evans, cited by Vickers, from a work “Religious Liberty and Non-Discrimination” is plainly right to say that “no system could countenance the right of anyone to believe anything and to be able to act accordingly.” I am satisfied that, notwithstanding the amendment to remove “similar”, it is necessary, in order for the belief to be protected, for it to have a similar status or cogency to a religious belief. However, as is apparent from the decision of Elias P in Eweida, which is a decision of the EAT on these Regulations, and not part of the ECHR jurisprudence, even a religious belief is not required to be one shared by others (see paragraph 29):

“Accordingly, it is not necessary for a belief to be shared by others in order for it to be a religious belief, nor need a specific be a mandatory requirement of an established religion for it to qualify as a religious belief. A person could, for example, be part of the mainstream Christian religion, but hold additional beliefs which are not widely shared by other Christians, or indeed shared at all by anyone.”

Humanism was sited as an example meeting the criteria, while belief in the supreme nature of Jedi knights, from the Star Wars movies, were offered as an example that fails on the basis of at least four of the limitations suggested above.
 
Employers should be aware of this decision, especially when dealing with any employees with strongly held views and beliefs – whether religious or not.

 

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